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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
50/95
THE STATE
versus
ABRAHAM LIEBRECHT COETZEE
HENDRIK
SCHALK COETZEE
PIETER LE ROUX DE BRUIN
JOHAN MARAIS
Heard on: 19 March 1996
Decided on: 6 March 1997
JUDGMENT
LANGA J:
[1] This matter is one of many which
have been dealt with by this Court, in which the constitutionality of provisions
of the Criminal
Procedure Act 51 of 1977 (the “Act”), have been
challenged. The Act plays a crucial role in the criminal justice system
of this
country; it is nonetheless legislation which was drafted and enacted in a
different constitutional era in which the legal
validity of its provisions could
not be questioned. The Constitution of the Republic of South Africa Act 200 of
1993 (the “Constitution”)
has brought about a drastic change, not
only in doing away with parliamentary sovereignty thus making all laws subject
to judicial
review, but also in the values which must now hold sway. The
problem is that important provisions of old legislation, and in particular
the
Act, are being struck down because they are inconsistent with the Constitution,
leaving gaps in the law which only the legislature
can fill. It is primarily
the task of the legislature, and not the courts, to bring old legislation into
line with the Constitution.
Although understandable because of the transitional
stage we are in, the continued operation of, and reliance by the prosecutors
on
provisions which do not reflect the new constitutional order is an
unsatisfactory state of affairs. Hopefully, it will not be
long before a
revised Criminal Procedure Act, consistent with the Constitution, is put in
place.
[2] The applicants are standing trial in the Witwatersrand Local
Division of the Supreme Court inter alia on twelve (12) counts of fraud.
At the conclusion of the prosecution’s case, Marais J acceded to the
applicants’ request
for the suspension of the trial and the referral to
this Court of the constitutionality of two provisions of the Act, namely,
sections
245 and 332(5).
[3] Although the propriety of the referral has
been challenged by the Attorney-General, it is clear from the judgment of Marais
J
that he has applied his mind to the issues relevant to the referral. It was
not in dispute that there were reasonable prospects
of the provisions being
found to be unconstitutional by this Court. Having decided, correctly in my
view, that the issues referred
could be decisive for the case and that it would
be in the interests of justice for him to refer the matter to this Court, I am
of
the view that the matter is properly before us. It will be convenient to
deal separately with the challenged provisions.
Section
245
[4] The section provides thus:
“If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.”
[5] The phrase “unless the contrary
is proved” means that the presumption may be rebutted by proof on a
balance of probabilities.[1] Absent
such proof, for example where the probabilities are evenly balanced at the end
of the trial, the court would be obliged to
convict, notwithstanding the
existence of a reasonable doubt regarding the state of mind of the
accused.
[6] The presumption falls into the class of “reverse
onus” provisions which have been held by this Court to infringe the
right
of an accused person to be presumed innocent as envisaged in section 25(3)(c) of
the Constitution.[2] The function and
effect of the presumption is to relieve the prosecution of the burden of proving
all the elements of the offence
with which the accused is charged.
[7] An essential element of crimes such as fraud and theft by false
pretences is knowledge of the falsity of the representation by
the person making
it. The effect of the provision is that once it has been proved that the
accused had made the false representation,
the presumption of knowledge comes
into operation and the onus of disproving it falls on the
accused.
[8] It is clear that the presumption is in conflict with the
long-established rule of the common law on the burden of proof that “it
is
always for the prosecution to prove the guilt of the accused person, and that
the proof must be proof beyond a reasonable
doubt.”[3] The provision
clearly infringes the presumption of innocence which is entrenched in section
25(3)(c) of the Constitution.
[9] The applicants contended, however, that
in addition to the presumption of innocence, the section also infringed what
was described
as “the cluster of rights associated with it,” namely,
the general right to a fair trial, the privilege against self-incrimination,
the
right not to be a compellable witness against oneself and the right to silence.
Because of the view I take that the presumption
infringes the right to be
presumed innocent that is protected by section 25(3)(c) of the Constitution, I
do not consider it necessary
to deal with the nature and scope of “the
cluster of rights” or how the impugned provision impinges on those rights.
[10] What remains to be determined is whether the infringement can be
said to be a permissible limitation to the right in terms of
section 33(1) of
the Constitution. In order to pass muster, a law which limits a right enshrined
in section 25 of the Constitution
must, in addition to being a law of general
application, be reasonable, justifiable in an open and democratic society based
on freedom
and equality, and
necessary.[4] The limitation must
also be such that it does not negate the essence of the right in
question.[5]
[11] It has been
held that this inquiry involves a weighing up of competing values and ultimately
an assessment based on proportionality.
The relevant considerations in this
balancing process include “the nature of the right that is limited, and
its importance
to an open and democratic society based on freedom and equality;
the purpose for which the right is limited, and the importance of
that purpose
to such a society; the extent of the limitation, its efficacy, and particularly
where the limitation has to be necessary,
whether the desired ends could
reasonably be achieved through other means less damaging to the right in
question.”[6]
[12] The
provision has its origins in section 280bis of the Criminal Procedure Act
56 of 1955 which was added in 1959.[7]
Section 245 in the current Act is substantially similar. Its purpose is to
facilitate the task of the state in the prosecution of
crimes such as fraud and
theft by false pretences by relieving the prosecution of the need to prove that
the accused knew that the
misrepresentation was false at the time that he or she
made it. The presumption has been held to be applicable to instances in which
the representation relates to facts which are objectively
ascertainable.[8]
[13] There is
no doubt a pressing social need for the effective prosecution of crime.
Kentridge AJ, speaking for the Court in
Zuma,[9] noted that reasonable
presumptions may be required by the prosecution, in relation to certain
categories of offences, to assist in
this task. It must be accepted that
section 245 was instituted by the legislature to facilitate the attainment of
its objective
to protect society. The measures taken were, however, enacted
before the Constitution was in force; they must now be weighed against
the
rights that are guaranteed by the Constitution which puts a high premium on the
values of freedom and equality.
[14] In a number of cases decided by
this Court, we have emphasised the importance of the rights entrenched in
section 25(3)(c) of
the Constitution, which include the right to be presumed
innocent, in an open and democratic society based on freedom and
equality.[10] Underlying the
decisions in those cases is the recognition that a consequence of the value
system introduced by the Constitution
is that the freedom of the individual may
not lightly be taken away. Presumptions which expose an accused person to the
real risk
of being convicted despite the existence of a reasonable doubt as to
his or her guilt are not consistent with what is clearly a fundamental
value in
our criminal justice system.
[15] The rationale for the provision is
that it deals with matters which are peculiarly within the knowledge of the
accused. Indeed,
the accused is in the best position to know why he or she made
a representation. It may well be that proving the state of mind of
the accused
in the context of a false representation presents the state with more
difficulties than in other cases. However, the
touchstone for justification,
where section 33(1) of the Constitution requires the prevailing state interest
to render a provision
not only reasonable but necessary as well, is not simply
the fact that an obligation to prove an element of an offence which falls
peculiarly within the knowledge of the accused makes it more difficult for the
prosecution to secure a conviction. The question
is whether it makes it so
difficult as to justify the infringement of the accused’s right to be
presumed innocent on the grounds
of necessity. I am not persuaded that this
difficulty is, in itself, sufficient to outweigh the importance of the right
infringed
and to justify the reversal of the onus. It is a difficulty, moreover,
which is not peculiar to offences in respect of which section
245 is applicable.
Discharging the burden of proof is a function which the criminal justice system
requires the prosecution to perform
in the normal course with regard to many
common law and statutory
offences.[11] It was not claimed
that if all the circumstances surrounding the false representation are fully and
properly investigated and presented
in evidence the prosecution cannot obtain
the conviction to which it might be entitled.
[16] It has not been
contended that other open and democratic societies based on freedom and equality
have found it necessary to resort
to such an unqualified presumption for the
proper enforcement of the criminal law in relation to all offences of which a
false representation
is an element. I am not aware of, nor have we been
referred to any examples in comparable jurisdictions, where a general provision
in the same context is employed.[12]
No good reason suggests itself why it should be necessary in this country to
have such a provision if, in general, crimes involving
misrepresentations are
adequately dealt with in other jurisdictions without the expedient of a reverse
onus provision.
[17] Section 245 makes severe inroads on the right of
those who fall within its ambit to be presumed innocent. No grounds were
advanced
in argument to justify the infringement and I have been unable to find
sufficient justification for this limitation to the constitutionally
protected
right. Because the provision fails to comply with the requirements of
reasonableness, justifiability and necessity as
required by section 33(1) of the
Constitution, it follows that it is unconstitutional by reason of its
inconsistency with the presumption
of innocence as enshrined in section 25(3)(c)
of the Constitution.
Section 332(5)
[18] Section 332(5) of the
Act has its origins in the Criminal Procedure Act 31 of 1917 where it was
inserted as section 348(5) of
that Act. The provision has since been part of
successive Criminal Procedure Acts in substantially the same form. Its wording
overlaps
considerably with that of the subsection dealing with the liability of
members of an association, other than a corporate body, in
the relevant Criminal
Procedure Acts.[13] It is part of a
comprehensive set of provisions contained in section 332, designed to facilitate
the criminal prosecution of corporations,
their directors and servants and
members of associations. Section 332(5) provides as follows:
“When an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor.”
[19] The applicants attacked the
provision on the basis that it requires a director or servant of a corporate
body that has committed
an offence to prove, on a balance of probabilities, that
he or she did not take part in the commission of the offence and could not
have
prevented it. It was argued that the onus cast upon the accused relates to an
essential element of the offence created by the
section and that the reversal of
the onus meant that the accused could be convicted despite the existence of a
reasonable doubt with
regard to his or her guilt. This reverse onus was
therefore said to violate the right to be presumed innocent as enshrined in
section
25(3)(c) of the Constitution as well as the “cluster of rights
associated with
it.”[14]
[20] The
Attorney-General did not resist this line of attack but a different stance was
adopted by the Government of the Republic
of South Africa (the Government),
which had been granted leave to intervene as a party. In the event, this
intervention facilitated
a fuller ventilation of the issues, which turned out to
be more complex than had at first appeared to be the case.
[21] The
attitude of the Government was that the proper construction of the provision had
to take into account the effect of the decisions
in R v Van den Berg and
Another[15] and S v
Klopper.[16] It was claimed
that the import of the subsection, in the light of those decisions, was that in
respect of crimes of which intent
was an element, the prosecution carries the
burden of proving the elements of the offence created by section 332(5),
including the
fact that at the time when the offence was committed by the
corporate body, the accused had knowledge of it, or, if not, that he
or she
deliberately refrained from acquiring that knowledge. This left the accused
with the onus to disprove the presumption that
he or she had taken part in the
commission of the offence and that such accused could have prevented it. It was
argued that because
the prosecution had to prove that the accused had knowledge
of the commission of the offence, the effect of the violation on the
right to be
presumed innocent is not severe and the limitation of the right is in any event
justifiable.
[22] I should mention immediately that I do not agree with
the Government’s contention that the section bears a meaning which
places
the burden of proving the accused’s knowledge on the prosecution. That
view finds no support from the language used
in the subsection. On the
contrary, the plain meaning of the words is that once the prosecution proves
that an offence has been
committed by a corporate body of which the accused was
a director or servant at the time of commission, the latter can escape
conviction
only by proving that he or she did not take part in and could also
not have prevented the commission of the offence. This is made
plain by both
Schreiner JA[17] and Steyn
JA,[18] in separate judgments in
R v Limbada and Another.[19]
The passages we were referred to in Van den Berg’s and
Klopper’s cases do not support the Government’s contention
either. In the former, Greenberg JA
stated:[20]
“[I]t is twice conceded that the first appellant may have been unaware of the act of the second appellant in causing the fire, and if he was so unaware, then he has proved, in terms of the sub-section, that he did not take part in the commission of the offence and could not have prevented it . . .”.
The learned judge does not purport to deal with the
burden of proving knowledge on the part of the accused. On the contrary, the
statement is based on the premise that the accused had been proved to be unaware
of the offence. From that, so the judge held, it
followed that he did not take
part in its commission and could also not have prevented it. In
Klopper’s case,[21]
Kotze AJA stated the following:
“Na my mening behoort sub-art. (5), wat . . . ’n vorm van strafpligtigheid oplΛ, op die mins verswarende wyse uitgelΛ te word. Ten einde ’n objektiewe vertolking te regverdig, behoort ’n kwalifikasie, soos bv. “rederlikerwyse” of “sonder nalatigheid” voor die woorde “kon verhoed het nie” ingelees te word. Sonder so ’n kwalifikasie in te voeg - waarvoor ek in ‘n strafbepaling, soos hierdie, geen regverdiging kan sien nie - is dit onmoontlik om te beslis dat die Wetgewer ‘n objektiewe uitleg wou voorskryf. Dit geld veral in ’n geval soos die onderhawige waar die aanklag poging tot bedrog is - ’n misdryf wat op opset berus. ’n Bevestigende antwoord op die voorbehoude regsvraag, sou inhou dat strafaanspreeklikheid op grond van culpa opgelΛ kan word t.o.v. ’n misdryf waarvan opset ’n essensiΝle element is. Dit is moeilik om te aanvaar.”
The issue there was the proper test to be
applied in determining whether or not it had been proved that an accused could
not have
prevented the commission of the offence, where such accused had not
taken part in its commission. It was held that the test was
subjective and that
where dolus was an element of the offence, mere negligence would not be
sufficient to warrant a conviction. Again the judgment was not concerned
with
the burden of proof with regard to the knowledge of the accused and did not
purport to deal with that question. None of the
other cases we were referred to
supports the Government’s contention in this
respect.[22] I am accordingly not
persuaded that the provision bears the meaning attributed to it by the
Government.
[23] During argument the question was raised with counsel
whether section 332(5) is reasonably capable of being interpreted as creating
statutory criminal liability, subject to a special defence and, if so, whether
it would still be inconsistent with the Constitution.
Since the point had not
been canvassed in the arguments filed, the parties were invited to submit
supplementary written argument,
which they subsequently did.
[24] The
applicants persisted in their initial
argument[23] but contended that even
if, on a proper construction of the provision, the onus related to an excuse,
exemption or exception, the presumption of innocence would still be
violated as long as the onus is concerned with an element that is essential to
the verdict.
It was contended in addition that inasmuch as the provision might
expose the accused director or servant to the risk of a fine or
imprisonment for
an offence not committed by such accused but by another person, it infringed two
constitutionally protected rights,
namely, that of freedom and security of the
person, which is protected by section 11(1) of the Constitution, and the right
to property
which is enshrined in section 28 of the Constitution.
[25] In
its supplementary argument, the Government came out in support of the view that
the effect of the provision is to create statutory
criminal liability and that
the onus on the accused does not relate to an essential element of the offence
but to an exemption, exception,
or excuse. It was contended that because the
accused is only called upon to prove a defence after the offence has been
established,
the presumption of innocence is not breached. In the alternative,
it was argued that any infringement there might be was a permissible
limitation
in terms of section 33(1) of the Constitution.
[26] Before considering
whether section 332(5) of the Act creates liability on the part of natural
persons for the offences committed
by such corporate bodies, I should mention
that no one was prepared to defend the extension of liability to servants, as
the provision
does. I agree that there is no justification for including the
category of “servants” in the provision and I shall proceed
on the
basis that the section refers only to directors. It will be convenient to deal,
in the first place, with the meaning and
purpose of section 332(5).
[27] In Limbada’s case, Steyn JA, delivering the judgment
of the court observed:
“The sub-section does not purport to create a new species of offence by superimposing the elements mentioned in it upon those of whatever offence is alleged against a member of an association of persons other than a corporate body. What it does is to deem an accused, in the circumstances described therein, to be guilty of an offence committed by another, if he does not prove that he had no part in that offence and could not have prevented it. In the circumstances so described it casts an onus of proof upon the accused and in effect directs the Court to find him guilty if he does not discharge that onus. It is essentially, therefore, an evidential provision . . . and does not bring into existence a distinct though mutable offence, having as one of its essentials the commission of some other offence.”[24]
And
further: [25]
“. . . what the prosecution was going to rely upon was not only the active participation of each in the conduct specified but also his or her liability under sec. 381(7) in relation to the conduct of the other”.
[28] Schreiner JA in his concurring
judgment however took the view that the section establishes a separate statutory
offence.[26] This was based on the
fact that the provision requires that the accused, who did not take part in the
commission of the offence,
should be convicted if such accused fails to prove
that he or she could not have prevented it. The two views regarding the nature
of the offence were the subject of comment in Klopper’s case.
Kotze AJA, speaking for the court, was of the view that neither was inconsistent
with the notion that an accused,
who was not involved in the commission of the
offence, nevertheless incurs liability for the offence unless such accused
proves that
he or she could not have prevented
it.[27]
[29] The effect of
Schreiner JA’s construction is that an accused who has not taken part in
the commission of the offence has
to prove what amounts to an element of the
offence created by the subsection, namely, that he or she could not have
prevented the
commission of the
offence.[28] A reverse onus of this
type would of course be a clear breach of the presumption of innocence enshrined
in section 25(3)(c) of the
Constitution.
[30] Two questions of
constitutionality arise from the view, reflected in the majority judgment in
Limbada, that the subsection establishes liability of the director for
the conduct of another and that an onus of proof is cast upon the
accused, on pain of conviction if he or she fails to discharge it. The first
question is whether the onus
provision is a violation of the presumption of
innocence protected by section 25(3)(c) of the Constitution. The second is
whether
the form of liability imposed on the director is an infringement of the
right to freedom and security of the person, which is protected
by section 11(1)
of the Constitution, as well as the right to property which is enshrined in
section 28. I turn now to deal with
the first question.
[31] In a number
of cases in which the constitutionality of reverse onus provisions has been
considered, this Court has left open
the question of the effect which a
provision, which requires the accused to prove an exemption, exception or
defence, has on
the presumption of
innocence.[29] What was decided in
those cases was that presumptions which required an accused to disprove an
element of the offence violated the
right to be presumed innocent because they
exposed the accused to the risk of a conviction despite the existence of a
reasonable
doubt.
[32] Applicants and the Government relied extensively
in their respective arguments on decisions of Canadian
courts.[30] Through these,
applicants endeavoured to demonstrate that the presumption of innocence is
violated where the accused is required
to discharge an onus on a balance
of probabilities in order to avoid a conviction. What the Government set out to
show was that different considerations
apply where the accused is only required
to prove a defence or an exemption or excuse, after a complete case for
conviction has been
presented by the prosecution. Firstly, so it was argued,
the presumption of innocence is not implicated at all in such an instance.
Secondly, it was contended that the context of the legislation is important.
Where the legislation is regulatory, as distinct
from being purely criminal,
the strict standard employed in respect of the presumption of innocence which
is relevant to criminal
prohibitions is not applicable.
[33] It is
necessary to deal with some of the decisions which, I consider, might provide a
useful indication of the approach followed
by Canadian courts in dealing with
this aspect. The relevant provision in the Canadian Charter of Rights and
Freedoms is section 11(d) which provides in part:
“11. Any person charged with an offence has the right . . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
[34] The Government relied on the
majority judgment in R v
Holmes[31] for its submission
that there was no breach of the presumption of innocence where the onus relates
to a defence and not to an element
of the offence. The provision in issue in
that case made it an offence for anyone to be in possession, “without
lawful excuse,
the proof of which lies upon him” of “any instrument
suitable for the purpose of breaking into any place ... under circumstances
that
give rise to a reasonable inference that the instrument has been used or is or
was intended to be used for any such purpose.
. . .” The presumption was
therefore only triggered once the Crown had proved beyond a reasonable doubt
facts from which such
inferences could be drawn. McIntyre J, speaking for the
majority of the court (with Le Dain and La Forest JJ concurring), held that
the
words used in the provision, “while apt in certain circumstances to do
so,” could not be said in the particular context
of that provision to
amount to a reverse onus. In his view, the presumption of innocence was not
violated where the prosecution
is required to prove its case beyond a reasonable
doubt without the benefit of any presumption, before any need for defence
arises.
He ruled that the provision required the Crown to discharge the burden
of proof by putting before the court “evidence covering
every element of
the offence of such nature that, if believed by the trier of fact and not
answered, would warrant a
conviction.”[32] In his view,
if the accused is convicted in the face of such a defence, it would not be
because of any presumption of guilt but
because the excuse was rejected after
the commission of the offence had been
proved.[33]
[35] R v
Schwartz,[34] which was also
cited in support of the Government’s approach, was concerned with a
provision which required an accused charged
with possession of a
“restricted weapon” to prove that he or she was the holder of a
registration certificate or permit
for such
weapon.[35] It was further provided
that a document purporting to be a registration certificate is evidence of the
statements contained therein.
By a majority of five to two, the court held
that, notwithstanding the fact that the accused had to bring himself or herself
within
the exemption and despite the words employed in the section, no reverse
onus was imposed on the accused and there was no danger that
he or she could be
convicted despite the existence of a reasonable doubt.
[36] We were
urged by the Government to follow the majority approach in Holmes and to
reject that adopted in the later case of R v
Whyte.[36] The issue in the
latter case was a provision which required an accused, charged with having care
or control of a motor vehicle while
his or her ability to drive was impaired by
alcohol, to prove that he or she had not entered the vehicle for the purpose of
setting
it in motion, once it was proved that such accused had occupied the
driver’s seat of a
vehicle.[37] In its judgment
the court expanded the theme which had been articulated in R v
Oakes[38] that a reverse onus
provision in relation to an essential element of the offence violates the
presumption of innocence because “it
would be possible for a conviction to
occur despite the existence of a reasonable doubt.” It accepted that what
the accused
was required to disprove was not an essential element of the offence
but that it was a fact “collateral to the substantive
offence.” It
was held, nevertheless, that the presumption of innocence had been violated even
though in this case such violation
was justifiable in terms of section 1 of the
Charter. Dickson CJC articulated the principle on which the finding of the
violation
of the right was based as follows:
“The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”[39]
[37] The approach in Whyte was followed in R v
Keegstra,[40] where a section in
the Criminal Code provided that an accused, charged with the offence of
promoting hatred against an identifiable
group, shall not be convicted “if
he establishes that the statements were true”. The words “if
he establishes” were characterised as imposing a reverse onus to prove a
defence in the court a quo. In
reaching his conclusion that the presumption of
innocence was violated, Dickson CJC, writing for the majority of the court,
considered
various decisions on the presumption of innocence. Observing that
the judgment of the court in Holmes had caused some confusion, he
stated:
“ . . . since Whyte it is clear that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt as to guilt in the mind of the trier of fact.”[41]
This
approach has been followed in a number of other cases as
well.[42]
[38] I consider
that both Holmes and Schwartz are distinguishable from the present
case. In both, the majority of the court reached their respective decisions on
the basis that
the provisions they were dealing with did not impose a reverse
onus and that there was no danger that the accused could be convicted
despite
the existence of a reasonable doubt. Section 332(5) involves elements which
have to be proved by the accused and which form
the substance of the offence.
In the circumstances of this case, I am of the view that the approach in
Whyte is to be preferred in considering the effect of section 332(5) on
the presumption of innocence. The provision imposes an onus on
the accused to
prove an element which is relevant to the verdict. It should make no difference
in principle whether or not an offence
created by a statute is formulated in a
way which makes proof of certain facts an element of the offence or proof of the
same facts
an exemption to the offence. What matters in the end is the
substance of the offence. If a provision is part of the substance
of the
offence and the statute is formulated in a way which permits a conviction
despite the existence of a reasonable doubt in regard
to that substantial part,
the presumption of innocence is breached.
[39] The fact that section
332(5) requires that the accused director should, on pain of conviction, prove
that he or she did not take
part in the commission of the offence and could not
have prevented others from doing so, even if it is formulated as an exception,
has the same consequence as a reverse onus provision which relates to an
essential element of the offence. Such accused will be
convicted unless he or
she discharges the onus; this despite the existence of a reasonable doubt with
regard to such accused’s
participation in the offence and the ability to
have prevented it.
[40] In the final analysis, whether section 332(5)
creates a form of statutory liability, with a shift in onus in respect of a part
thereof or a new crime with a special defence, the proof of which rests on the
defence, the final effect is the same. The objection
which is fundamental to
the reversal of onus in this case is that the provision offends against the
principle of a fair trial which
requires that the prosecution establish its case
without assistance from the accused. In either event, the right of the accused
to be presumed innocent is breached.
[41] It was argued on behalf of the
Government that the context of the legislation is relevant to the effect which a
reverse onus
has on the presumption of innocence. What the submission amounted
to was that a provision which would offend against the presumption
of innocence
when applied in a truly criminal context would not necessarily do so in a
regulatory one. Section 332(5) was said to
be a regulatory provision which, on
that basis, did not offend against the presumption of innocence.
[42] The
distinction between the “truly criminal” and
“regulatory” offences has been discussed in various
judgments in a
number of jurisdictions. It is perhaps best articulated by Cory J in
Wholesale Travel Group
Inc.[43] in the passage quoted
in paragraph 193 of the judgment of O’Regan J. In much the same vein and
with regard to the justification
for the difference in treatment between
different categories of offences, Jackson J delivering the judgment of the US
Supreme Court
in Morissette v United States referred to the hazards which
have become part of modern living as a result of industrialisation. According
to him, those dangers:
“ . . . have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. . . . The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably extract from one who assumed his responsibilities”.[44]
Indeed,
Canadian Courts seem to have made a number of important distinctions between
offences that are “ordinary” and
“regulatory”, between
“strict” and “absolute” liability and between offences
that provide for
imprisonment and those that do not. In the context of some of
these categories, what looks like reverse onus provisions have been
found not to
be objectionable. It is not necessary to deal with these distinctions in the
present context. Although some assistance
might be derived from the
categorisation in a proper case, I consider that it would not be safe to regard
it as anything more than
a broad guideline. What is clear is that section
332(5) has a very wide reach and is not limited to regulatory offences. It is
a
general provision of extremely broad application. It is applicable to any
director or servant of a corporate body that has committed
a crime; the crime in
question is any possible offence which might be committed by a corporate
body or any of its officials, be they directors or servants. It is applicable
equally to all types of offences, be they
serious or trivial, common law or
statutory, “purely criminal” or regulatory. It is applicable
whether the liability
is absolute or strict and whether it is based on intent or
negligence on the part of the perpetrator. Because of the virtually
uncircumscribed
ambit of the provision with regard to offences, the penalties
could also range from the trivial to the very serious and there is
nothing to
preclude the imposition of imprisonment. The section cannot therefore be said
to be regulatory.
[43] Further, I am by no means persuaded that the mere
categorisation of an offence as regulatory would necessarily have the effect
of
a lower standard of scrutiny as contended for by the Government. The
presumption of innocence is breached whenever the effect
of a reverse onus
provision is such that the accused could be convicted despite the existence of a
reasonable doubt as to guilt or
innocence. As pointed out by La Forest J in his
partially dissenting judgment in the case of Wholesale Travel Group Inc.,
“. . . what is ultimately important are not labels (though they are
undoubtedly useful), but the values at stake in the particular
context.”[45] Once such
breach has been established, the balancing process prescribed in section 33(1)
of the Constitution becomes decisive.
The real question in each instance will
then be whether the provision is reasonable, justifiable and necessary. It is
the substance
of the provision, not its form, that is decisive.
[44] In
the result, I consider that the first question posed in paragraph 30 must be
answered in the affirmative. The onus provision
in section 332(5) offends
against the right to be presumed innocent as contained in section 25(3)(c) of
the Constitution. The provision
therefore falls to be declared unconstitutional
unless it is saved by the provisions of section 33(1) of the
Constitution.
[45] It is to be noted that the true purpose of section
332(5) is not the creation of criminal liability without any fault on the
part
of the accused director. What is intended is the conviction of those directors
who either take part in the commission of the
offence or are in a position to
prevent it but fail to do so. Proof of fault is therefore essential to a
conviction under the section.
For the purposes of this judgment, it is
therefore unnecessary to consider whether the creation of absolute criminal
liability for
an offence would be constitutionally permissible. I accordingly
do not find it necessary to comment on the view expressed in paragraph
93 of the
judgment of Kentridge AJ, that if an offence of absolute liability had been
created, it would not in itself have given
rise to any question of the
unfairness of the trial in respect of such an offence.
[46] What the
legislator has in substance done is to place a positive duty on the director or
servant to disprove factors which are
central to the offence and made a
conviction the consequence of a failure to do so. The legislature is, in my
view, fully entitled
to place a positive duty on directors and to make the
omission to discharge that duty an offence. What is in issue here is how this
has been done. It is appropriate that the Court should have regard, not only to
the purpose and effect of the legislation, but also
to the means used to achieve
its objective. What causes the provision to fall foul of the presumption of
innocence here is the effect
of merely changing the form of the provision to
require the accused, rather than the prosecution, to prove elements which are
essential
to his or her guilt or innocence. There is manifest unfairness where
the legislature, having created an offence potentially entailing
very grave
penalties, goes on to subvert an important constitutionally protected right by
requiring crucial elements of the offence
to be proved or disproved by the
accused on pain of conviction should the onus not be discharged. As pointed out
in Morissette,[46] there
should be a limit to the power of the legislature “to facilitate
convictions by substituting presumptions for proof”.
In Patterson v
New York,[47] the dissenting
judges (Powell J, Brennan J and Marshall J) objected cogently to the fact that
the test which was the basis of the
majority judgment:
“ . . . allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case so long as it is careful not to mention the non-existence of that factor in the statutory language that defines the crime.”
[47] It remains
to be determined whether section 332(5) is nevertheless justifiable in terms of
section 33(1) of the Constitution.
The question is whether this limitation on
the presumption of innocence is, in all the circumstances, reasonable,
justifiable and
necessary and not a negation of the essential content of any of
the affected rights.[48]
[48] The purpose of section 332(5) is to ensure that directors who could
have prevented the commission of crimes by the corporate
body concerned should
bear responsibility for such crimes. Directors, of course, occupy a special
position of responsibility, not
only in relation to the corporate body but also
with regard to the public in
general.[49] The state consequently
has an important interest in ensuring that the affairs of corporate bodies are
properly and honestly conducted.
The corporate body itself has to be protected
against the dishonesty and other criminal conduct of those in charge of its
affairs
or who are involved with them. It would not in itself be unreasonable
to provide special measures to enable the prosecution to
overcome the difficulty
of gathering evidence about corporate activities. This would be consistent with
the state’s duty to
protect society. The question in this case is whether
the state could adequately achieve these legitimate ends by means which would
not be inconsistent with the Constitution in general and section 25(3)(c) in
particular.
[49] The problem of proving elements of the offence is one
that is not peculiar to offences envisaged under section 332(5). It is
a
problem that is often encountered in the criminal justice system. Where,
however, special measures have to be provided to meet
specific difficulties
related to facilitating prosecutions, they must fit in with the requirements of
the Constitution. It is not
the function of this Court to prescribe to the
legislature how it should seek to achieve these ends. I can see no reason
however,
why the state could not, for example, impose appropriate statutory
duties on directors and other persons associated with the corporate
body aimed
at ensuring that its affairs are honestly conducted and that it is itself
protected against dishonest conduct. This could
be done in a variety of ways by
means of appropriate legislative provisions which might, for instance, impose
the duties of disclosure
and reporting on the corporate body, its directors,
servants and other persons involved with its affairs. There has been no
suggestion
that such measures, enforced through appropriate sanctions, could not
accomplish as effectively the ends sought to be achieved by
section 332(5) of
the Act. It has further not been contended that such objectives could not be
achieved without placing an onus
on the accused to prove any aspect of his or
her innocence in a criminal prosecution for a breach of such duty. I am
accordingly
not persuaded that the reverse onus provisions in section 332(5) are
necessary. It follows therefore that reliance on section 33(1)
of the
Constitution must fail.
[50] This conclusion with regard to the effect of
section 332(5) on the presumption of innocence makes it unnecessary for me to
deal
with the second question[50] as
to whether the form of liability imposed on the director by the impugned section
infringes the rights protected by sections 11(1)
and 28 of the Constitution.
Not much was said in argument with regard to section 28 and I propose to say
even less. With regard
to the effect of section 11(1), I have had respectful
regard to the views and extensive research contained in the respective judgments
of Kentridge AJ and O’Regan J on this difficult issue. I
however consider it unnecessary for me to canvass the issue in this
judgment.
The Order:
[51] I turn now to the appropriate order.
The issue of whether any part of section 332(5) can legitimately be severed in
order to
avoid striking down the whole provision was argued by the Government.
It was suggested that if the words “it is proved that”
were removed,
what remains would still give effect to the main objective of the statute. In
Coetzee v Government of the Republic of South Africa; Matiso and Others v The
Commanding Officer, Port Elizabeth Prison and
Others,[51] Kriegler J, speaking
for this Court, articulated the test as follows: “ . . . first, is it
possible to sever the invalid provisions
and second, if so, is what remains
giving effect to the purpose of the legislative scheme?” Put differently,
the rule to be
applied is that “where it is possible to separate the good
from the bad . . . and the good is not dependent on the bad, then
that part of
the Statute which is good must be given effect to, provided that what remains
carries out the main object of the
Statute.”[52] It is indeed
true that if severance would achieve the effect of preserving the provision in a
form which is consistent with the
Constitution, that route must be followed.
The Government suggested that the excision of the words indicated would have the
effect
of removing the onus of proof from the accused and placing it on the
prosecution. In his judgment, Kentridge AJ proposes that the
effect of excising
the words “it is proved” would be to cast an evidentiary, rather
than a legal burden as is the case
at present, on the accused. He suggests that
the effect of this change would be to keep the provision within the bounds of
constitutionality.
O’ Regan J’s judgment goes somewhat further.
She suggests that the words “ it is proved that he did not take
part in
the commission of the offence and that” should be severed. The result,
according to her, would be a shift of onus
from the accused to the prosecution.
I agree with Kentridge AJ that the effect of the excision, as suggested by the
Government and
as proposed in the learned judgments of Kentridge AJ and
O’Regan J, would raise the issue of whether the interpretation of
the
provision would be affected by the provisions of section 90 of the Act. I
consider, with respect, that it would. The interpretation
of the provision
would have to be dictated by the language used. The effect of the
“unless” clause in the truncated
version would be to introduce an
exception and this would immediately place the provision within the purview of
section 90 of the
Act. I am of the view that it is not open to the Court to
assign an interpretation to the provision in order to make it constitutionally
acceptable, if that interpretation is not supported by the words used. Such an
exercise would introduce more uncertainty into the
interpretative task of the
courts. In this case, if the suggested words are excised, the ordinary meaning
of what remains would
still constitute a legal
burden.[53] It follows that once
the truncated version cannot escape the effect of section 90 of the Act, the
severance serves no useful purpose
and therefore cannot be resorted
to.
[52] The following order is accordingly made:
1. Sections 245 and 332(5) of the Criminal Procedure Act No 51 of 1977 are inconsistent with the Republic of South Africa Constitution Act 200 of 1993 and are, with effect from the date of this judgment, invalid and of no force or effect.
2. In terms of section 98(6) of the Constitution, this declaration of invalidity shall invalidate any application of sections 245 and 332(5) of the Criminal Procedure Act 51 of 1977 in any criminal trial in which the verdict of the trial court was or will be entered after the Constitution came into force, and in which, as at the date of this judgment, either an appeal or review is pending or the time for noting such appeal has not yet expired.
3. The matter of the State versus ABRAHAM LIEBRECHT COETZEE, HENDRIK SCHALK COETZEE, PIETER LE ROUX DE BRUIN and JOHAN MARAIS is referred back to the Witwatersrand Local Division of the Supreme Court to be dealt with in accordance with this judgment.
Kriegler J concurs in the judgment of
Langa J.
CHASKALSON P:
[53] I concur in the judgments of
Mahomed DP and Langa J, and in the order proposed by Langa J. I also agree with
Ackermann J’s
analysis of the purpose of section 332(5) and with his
conclusion as to the consequences this has for the severance proposed by
O’Regan
J.
MAHOMED DP:
[54] I have had the benefit of
reading the judgments prepared by my colleagues in this matter. I agree with
the order proposed by
Langa J. However, in view of the different views and
nuances which appear from these judgments I consider it desirable to set out
very briefly my approach to some problems which have manifested themselves
during and after argument in this case.
[55] I have nothing to add to the
judgment of my colleague Langa J with regard to section 245 of the Criminal
Procedure Act. That
section is manifestly and demonstrably unconstitutional for
the reasons articulated in his judgment. I also have nothing to add
to the
unanimous view of my colleagues that the reference to “a servant”
contained in section 332(5) of the Act is indeed
unconstitutional.
[56] With regard to the remaining part of section
332(5) there are two separate questions which arise. Firstly, does the section
constitute an invasion of section 11 of the interim Constitution (‘the
Constitution’)? Secondly, does the section properly
interpreted
constitute a breach of section 25(3)(c) of the Constitution?
[57] In his
analysis of the subsection Kentridge AJ considers that section 332(5) could have
been enacted without creating the qualification
introduced into the subsection
beginning with the word “unless”. He believes that the subsection
can therefore not be
open to any constitutional attack based on section 25(3)
because the qualification effectively gives to an accused person an opportunity
to escape the consequences which would have ensued without the qualification.
On this approach section 25(3)(c) becomes irrelevant
to any enquiry into the
constitutionality of the impugned section. I am respectfully unable to agree
with this approach. If section
332(5) was enacted without the qualification it
would in my view not have survived constitutional attack. It would have been
vulnerable
to challenge under section 11 of the Constitution because it
constituted a fundamental breach of the right to freedom and security
of the
person. Every director of a corporate body which had committed an offence
would, himself or herself, irreversibly have been
deemed guilty of the same
offence, however remote be her or his connection with the offence, and however
difficult it was for such
a director to have knowledge of the commission of the
offence or to prevent it. Such a provision would so seriously have undermined
the freedom and security of every director as to offend the basic guarantee of
freedom secured by section 11 of the Constitution.
It would have operated in
an invasive and unacceptable manner to discourage, to deter and to impede people
in this country from
continuing to engage in valuable entrepreneurship through
the mechanisms of corporate bodies which are crucial to the effective direction
of modern industrial society.
[58] If section 332(5) is to be saved from
attack under section 11 it must therefore be because the qualification contained
in the
subsection, to which I have referred, prevents the consequences which
would otherwise have operated to invade the guarantees contained
in section
11.
[59] The qualification introduced by section 332(5) is therefore
fundamental to its structure and central to the proper identification
of the
mischief or the evil which is sought to be addressed by the legislation. The
mischief targeted is not persons being directors
of corporate bodies which have
committed offences: it is directors who take part in the commission of the
offence and directors
who knew of the offence and fail to prevent it when they
are able to do so. This is the real heart of the offence, the real target
of
the legislation, its raison d’Λtre.
[60] Section 332(5)
achieves this by requiring the accused to prove that he or she did not
participate in the offence and could not
have prevented it. The result is this:
if at the end of the case the court has a reasonable doubt as to whether or not
the accused
took part in the commission of the offence by the corporate body, or
a reasonable doubt as to whether or not the accused could have
prevented the
commission of that offence, the court would nevertheless be required to convict
such an accused. Prima facie this
seems to me to be a breach of the presumption
of innocence contained in section 25(3) of the Constitution.
[61] On my
analysis of section 332(5) there is therefore a clear breach of section 25(3)(c)
of the Constitution. The only way in
which its constitutionality could be
upheld would be if it could be justified under the limitations authorised by
section 33(1) of
the Constitution. In my view there is no justification for any
such limitation because of the wide ambit of the purported operation
of section
332(5). The offence by the corporate body for which the accused director can be
held liable is not limited at all. No
attempt is made to confine its operation
to a limited class in which there may be sound grounds of public policy for
directors of
corporate bodies to maintain a high degree of circumspection,
diligence and vigilance in order to protect members of the public against
offences committed by corporate bodies which can have prejudicial effects on the
health and wellbeing of the general community.
There is no attempt in section
332(5) to limit such offences to offences of a ‘regulatory’
character. All offences are
included whatever be their nature, whatever be
their purpose and however remote be their connection with the ordinary purposes
and
activities of the corporate body.
[62] These conclusions make it
unnecessary for me to decide whether or not the impugned subsection, on my
interpretation, can successfully
be challenged under section 11 of the
Constitution. I would prefer to leave that question open. The question whether
a statute can
legitimately provide for the criminal liability of an accused
person without requiring mens rea in the form of either dolus or culpa
and, if
so, the circumstances under which this might be permissible, raise different
questions of interpretation and policy which
might have to be considered in the
future in the appropriate case, namely, where a decision on these issues is
necessary and the
Court has heard full argument.
[63] Notwithstanding the
conclusion to which I have come on my analysis of section 25(3)(c), and the
limitations clause in section
33(1), I do appreciate the need for proper
legislation to protect large sections of society from the injurious consequences
of the
conduct of corporate bodies engaged in fields of activity crucially
impacting upon society and the need for effective deterrence
against such
activities, often conducted by directors operating under the protective shield
of the corporate body. Inter alia for
this reason, I have given consideration to
the suggestion by Kentridge AJ (in paragraphs 107-9 of his judgment) that the
impugned
section can be saved simply by deleting the words “it is proved
that” within the section. Kentridge AJ suggests that
the effect of such a
severance could be to put an evidential burden on the accused. O’Regan
J, (in paragraphs 202-3 of her
judgment) in turn suggests severing the words
“it is proved that he did not take part in the commission of the offence
and
that” which, so she holds, would result in the prosecution bearing the
onus of proving that an accused, who did not take part
in the commission of an
offence, could have prevented it.
[64] I cannot agree with either
suggestion and subscribe to the view espoused by Langa J in paragraph 51 of his
judgment. In arriving
at that conclusion I am persuaded by the reasoning of
both Langa J and Didcott J. Excision of neither set of words would materially
affect the linguistic meaning or the legal effect of the subsection. It does
not say: “unless it is proved by the accused”;
yet, it has always
been construed by our courts as meaning this and not as meaning “unless it
has been proved by the
prosecution.”[1] Saying that a
director is deemed to be guilty unless he did not or could
not have done something, does not result in the onus of proof - nor even
an evidentiary burden - being cast on the prosecution in respect
of
participation by a director in the commission of the corporation’s crime
or the director’s inability to have prevented
such commission. I am in
full agreement with Didcott J’s analysis of the effect of the use of the
conditional word “unless”
followed by the negative. The negative
formulation of an exclusion from liability which follows the deeming provision
contained
in the main clause is structurally an exception to the main clause,
and because of this the words “it is proved” have
been consistently
construed by the courts as meaning “it is proved by the
accused”.[2] Deletion of the
words “it is proved that” or of the words “it is proved that
he did not take part in the commission
of the offense and that” cannot
logically have the result of converting an exception into an essential element,
and of changing
the meaning of the subsection from “it is proved by the
accused” to “it is proved by the
prosecution.”
[65] There is moreover much to be said for the view
that the subsection, on either truncation proposed, would trigger the
application
of section 90 of the Act, which in itself casts a full onus on an
accused in respect of exceptions, exemptions and the like. Reading
the
subsection as it stands, or reading it subject to either proposed deletion,
results in an accused director having to disprove
the one, the other or both of
the factors introduced by “unless”, in order to avoid being struck
by the deeming provision.
In order to attain an acquittal the director bears
the onus. Failure to discharge that burden, notwithstanding the existence (and
persistence) of a reasonable doubt as to guilt may result in a conviction.
Therein lies the unconstitutionality.
Kriegler J concurs in the judgment
of Mahomed DP.
ACKERMANN J:
[66] Save for the ultimate positive
conclusion which O’Regan J reaches on the question of severance in respect
of section 332(5)
of the Criminal Procedure Act I fully agree with her judgment
in this matter. My disagreement with my learned colleague relates
solely to her
application of the second part of the severance test, namely, whether what is
left after the severance proposed by
her still gives effect to the main object
of the section and her affirmative conclusion in this regard.
[67] This
is not the sort of case, referred to by Kriegler J in Coetzee v Government of
the Republic of South Africa; Matiso and Others v Commanding Officer, Port
Elizabeth Prison, and Others, 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC)
at para 16, which might require special treatment on the issue of severability.
Here, as there, the trite test can properly be applied. What is left after the
severance is a provision which in substance imposes
criminal liability on the
director of a corporate body for an offence committed by that corporate body in
circumstances where the
director, although aware of the commission of the
offence and able to prevent its commission, desists from doing so. This, in my
view, is for all practical purposes the same offence as that embodied in section
332(5) before severance, on the construction given
in S v Klopper 1975
(4) SA 773 (A) at 780-1; the effect of severance merely being the removal of the
reverse onus provisions.
[68] In determining what the main object of
section 332(5) is, it is crucial to determine whether its provisions (ignoring
the evidential
effect of the reverse onus) constitute a new offence or a new
substantive basis for imposing criminal liability on directors, or
whether they
are substantially the same as the common law. In my view they are substantially
the same as, if not identical to,
the common law. If an employer, being able
to control a physical act of a servant of which he or she is aware and which
would constitute
a crime, forbears to prevent it, such forbearance constitutes
an implied authority to commit the act; the employer is guilty as a
socius
criminis and the element of mens rea is provided by the employer’s own
mental condition (R v Shikuri 1939 AD 225 at 230-1; R v Bennett and Co
(Pty) Ltd and Another 1941 TPD 194 at 199-200; R v Van der Merwe 1950
(4) SA 124 (0) at 128F-129A; S v Claasen 1979 (4) SA 460 (ZRA) at
463H).
[69] This principle must apply, a fortiori, to the case of a
director who, having a fiduciary duty to the company in question, is
aware of
acts being performed which would render the company criminally liable, is in a
position to prevent such acts but forbears
from doing so. By such forbearance
the director must likewise be taken to authorise impliedly the commission of the
acts and is
liable as socius criminis. In R v Blackmore and Another 1959
(4) SA 486 (FC) at 490H-491A the court, in an obiter dictum, was prepared to
extend the principle to company directors but found
it unnecessary to do so for
purposes of its decision. In my view there would be a duty on the director to
act to prevent the commission
of acts which would render the company liable to
criminal prosecution and his intentional failure to prevent the commission of
these
acts, if he were in a position to do so, would render him criminally
liable as a socius criminis (compare Burchell and Milton Principles of
Criminal Law (Juta, Cape Town 1991) 84-7; Snyman Criminal Law 2ed
(Butterworths, Durban 1989) 50-2, 266-8; S v Timol and Another 1974 (3)
SA 233 (N) at 235G and S v Williams en ’n Ander 1980 (1) 60 (A) at
63D-E). The dearth of authority on the extension of this common law principle
to directors is no doubt due to
the fact that since the introduction into the
Criminal Procedure Act 31 of 1917 of the precursor to section 332(5) prosecutors
have,
because of the reverse onus provisions in the statutory provisions, not
found it necessary to rely on the common law to secure the
conviction of
directors.
[70] From the above conclusion it must follow that the main
(if not the exclusive) object of the section is limited to the reversal
of the
onus of proof in respect of material elements of an offence and principles of
criminal liability of directors which exist
at common law. It is therefore
impossible to conclude that a severance which does no more than to do away with
the reverse onus
provisions gives effect to the main objects of the section; in
fact it does the reverse.
[71] In my view it is therefore not possible to
sever the onus provisions from section 332(5) and I accordingly concur with the
order
proposed by Langa J.
DIDCOTT J:
[72] I concur in the grant
of the order proposed by Langa J and in the judgment which he has written in
support of that. I also
agree with the judgment prepared by Mahomed DP,
especially the fundamental part pertaining to the effects that sections 11(1)
and
25(3)(c) of the interim Constitution have on the present case and their
relationship there with each other, which I find wholly convincing.
Some
comments of my own will nevertheless be added to the criticisms levelled already
at section 332(5) of the Criminal Procedure
Act, the one that has become
controversial. They concern its overbreadth and the consequences of that, as I
view those topics.
[73] An obvious point at which section 332(5) goes too
far, and to which several earlier judgments written in this matter have drawn
attention, is found where it includes within its ambit every
“servant” of the corporate body in question, a description
not
restricted to an employee with managerial functions or responsibilities but one
so wide that it embraces the humblest and most
menial worker. The word lends
itself readily and on all counts, however, to severance from the rest of the
subsection. So, by simply
striking it out, we could have repaired the
subsection if its presence there had been the only fly in the ointment. But
that is
not the case.
[74] The allusion to an “offence” also
contributes to the width of section 332(5). The offences which it encompasses
are not confined to those committed either peculiarly or mainly by corporate
bodies, to the sort that have been created for instance
in order to control or
regulate their affairs or the activities familiarly undertaken by them. All
other crimes are covered as well,
crimes which anybody else may happen to
perpetrate in contravention of the common law or some statutory decree. The
extra coverage
is both superfluous and foreign to the store which Kentridge AJ
has set in his judgment by the frequent need for such control and
regulation.
We cannot constrict the subsection there by using the tool of severance or
resorting to a limited interpretation. A
remedial qualification would have to
be introduced, one tantamount to an amendment of the wording which lay beyond
our competence.
[75] I come next to the respect in which the overbreadth
of the section 332(5) troubles me most. Here too no narrower meaning can
be
achieved by either severance or a restrictive reading. Here too nothing but an
amendment can accomplish that. I refer to the
mention made of “any
corporate body”. No distinction is drawn between companies incorporated
with limited liability
and other corporate bodies. Nor, within the field of
companies, does the subsection differentiate between public and private ones,
between companies which solicit and receive money from investors and those that
never do, or between companies engaged in trading,
manufacturing or any other
business with the public and the types that are not. All are treated alike, and
in the same deep breath.
The impact of the subsection is then spread further by
section 332(10) of the statute, which declares that:
“In this section the word ‘director’ in relation to a corporate body means any person who controls or governs that corporate body or who is a member of a body or group of persons which controls or governs that corporate body or, where there is no such body or group, who is a member of that corporate body.”
I agree with Kentridge AJ that it is
quite fanciful to imagine the vice-chancellor of a university or the chairman
of its council
being prosecuted for the negligent driving by one of its servants
of a vehicle belonging to it which was driven in the course of
his or her
employment there. But, between the extremes of that hypothetical situation and
those much more realistic where a high
level of personal responsibility can
rightly be expected, lies a large area in which the prosecution of a director as
defined of
“any corporate body” is less far-fetched and would often
be oppressive.
[76] One example will suffice, I hope, to illustrate that
point. It has to do with the private ownership of individual units in blocks
of
flats and complexes of cluster housing that stand on single plots of land. The
legal ownership of such units can be acquired
only through separate sectional
titles. Rights that are less than but comparable in their effects with those of
legal ownership,
bestowing some of its important advantages, can and have to be
obtained by means of shares held in the shareblock companies which
own the land
and buildings. The two alternative schemes have become so popular that they
amount nowadays to a substantial and significant
feature of our housing scene,
especially in the bigger and more affluent urban areas. Their popularity is
likely to grow in the
future. The result has been, and in all probability will
continue to be, the proliferation throughout the country of the bodies
corporate
which manage the properties owned by sectional titles and the shareblock
companies controlling the properties enjoyed through
them. In paragraph 98 of
his judgment Kentridge AJ has expressed the view that:
“Those who choose to carry on their activities through the medium of an artificial legal persona must accept the burdens as well as the privileges which go with their choice.”
The owners or
quasi-owners of the properties which I now have in mind make no such choice,
however, since none but Hobson’s
sort confronts them. For in no other way
can they gain titles to their dwellings. Nor do I see why that state of affairs
should
affect adversely those whom they appoint, by and large from their ranks,
as trustees of their bodies corporate or directors of their
shareblock
companies. Neither kind of structure conducts any business besides the running
of the property in the interests of its
residents. No funds are handled by
either but the ones which the holders of the units or shares are required to
contribute. No
dividends are paid in turn to them. Nor is any interest. Such
nett profit as may accrue from the administration of the property
is invariably
appropriated to future expenditure or to the reduction of future contributions.
Yet, despite the predominantly domestic
nature of their activities, bodies
corporate and shareblock companies may find themselves charged with misdeeds.
Their income tax
returns may not have been lodged timeously. A town planning
scheme may have been contravened. A malfunction in the lift at a block
of flats
may have caused its collapse and the death of a person using it for which the
body in question is said to be culpable.
Further examples are easily
conceivable. It seems hardly fair that part-time and unpaid trustees or
directors, as they certainly
are on the whole, should be exposed personally to
threats of criminal liability greater than the risks ordinarily run by
individuals.
[77] The overbreadth of section 332(5) in the second and
third respects which I have discussed, viewed alongside the analysis by Mahomed
DP of its other effects, satisfies me that it would have been incompatible with
section 11(1) without the qualification introduced
by the word
“unless”; that section 33(1) of the interim Constitution would not
have preserved it in that event from nullification
on the score of such
incompatibility; and that, once the qualification enters the reckoning, the
palpable inconsistency between it
and section 25(3)(c) which then arises is
likewise inexcusable under section 33(1) and accordingly invalidates
it.
[78] Kentridge AJ has suggested, however, that any inconsistency with
section 25(3)(c) could be remedied by the simple excision from
section 332(5) of
the words “it is proved that” which appear in the qualification
immediately after “unless”,
together with the next
“that”. The present reverse onus would then be converted, he
considers, into a mere evidential
burden resting on the defence which was
inoffensive to section 25(3)(c). I cannot unfortunately agree with him. The
deletion which
he recommends would not, in my opinion, produce the
transformation envisaged. It would make no difference at all that I can see
to
the meaning of section 332(5), to which the words in question contribute nothing
apparent to me. The qualification postulates
two material circumstances,
firstly the fact that the director who is prosecuted took no part in the
commission of the offence, and
secondly the fact that he or she could not have
prevented its commission. One side or the other has to prove either those
circumstances
or their converse. The prosecution would have been saddled with
the onus of proving the converse had the subsection decreed that
the guilt of
the director was deemed “if” he or she had participated in or could
have prevented the commission of the
offence. But the defence would still need
to prove both facts, to elevate them from postulated to actual ones, were guilt
to be
deemed in accordance with the severance “unless” the director
did not take part in and could not have prevented the commission
of the offence.
That strikes me as the obvious and inescapable effect of the attenuated wording,
and in particular of the conjunction
“unless”, followed by a notion
couched in negative terms, rather than the contrary conjunction
“if”, used
in relation to a thought expressed positively. It is a
meaning so clear, to my mind, that the subsection without the words scrapped
by
the severance would not even rank as a provision reasonably capable of bearing
an interpretation which substituted a mere evidential
burden for the prevailing
onus of proof. On that footing, if I am right there, section 35(2) of the
interim Constitution does not
enter the picture.
[79] The judgment
delivered in R v Shangase[1]
supports the construction which I have placed on the truncated version of
section 332(5) resulting from the deletion proposed. The
case had to do with a
statutory provision which forbade any “native” as defined to stay in
an urban area for longer than
a specified period “unless. . . permission
so to remain has been granted to him”, and declared a contravention of the
prohibition to be an offence. The Appellate Division
held[2] that the onus to prove the
grant of permission had thus been cast on the person charged with the offence.
And it did so, I underline,
notwithstanding the absence from the provision in
question of any such words preceding “permission” as “it is
proved
that”. The qualification examined then was classified in the
judgment, to be sure, as an exception or the like for the purposes
of the
statutory predecessor to section 90 of the Criminal Procedure Act. Perhaps the
one in issue now would be so rateable too
under section 90, in the event of and
after the surgery suggested for it. But that is neither here nor there. My
interpretation
does not depend on a recourse to section 90. It turns on the
particular wording of the residue surviving the surgery. I therefore
find it
unnecessary in this case to undertake a constitutional appraisal of section 90
itself.
[80] In the part of his judgment that deals with severance
Kentridge AJ has relied on some Canadian decisions and on one given in
an appeal
emanating from Hong Kong.
Those cases, especially the latter, may well be
distinguishable from the present matter on the grounds of material differences
between
the phraseology employed in the foreign legislation and the wording
which we must construe. If the decisions cited are in point
because that is not
so, however, I am unwilling to follow them.
[81] Severance is also
favoured by O’Regan J in the judgment which she has prepared. But she goes
distinctly further than Kentridge
AJ does, proposing the removal from section
332 (5) of the words “it is proved that he did not take part in the
commission
of the offence and that”. The adoption of her suggestion would
leave intact the phrase “unless... he could not have
prevented it”
and deem the director guilty otherwise. The effect of that exercise, she
maintains, would be no burden at all
resting on the defence, not even an
evidential one besides any imposed elsewhere by the need to answer a prima
facie case, but a full onus transferred to the prosecution on the issue
whether the director could have prevented the offence from being
committed. She
obviously presupposes a factual situation where the director took no part in the
commission of the crime. For his
or her participation in that would have
amounted in any event to a personal guilt under the common law. No occasion
could then arise
for the same person’s guilt to be deemed on the score of
an ability to have prevented the commission of the offence. Nor would
it make
much sense to enquire whether its perpetration was preventable by a participant
in that very conduct. It follows from what
I have said already about the force
of “unless” combined with the negatively shaped phraseology which
comes next, however,
that I do not agree with O’Regan J either. I fail to
see how the abridged qualification for which she votes can rightly be
construed
by reading “unless” as “if”, by ignoring the
“not” in the clause that starts with the
conjunction, and
accordingly by treating the phrase as it would have run had its formulation been
“if he could have prevented
it”. That bold course is simply not
open to us, I consider, in the face of words so clear, so unambiguous and so
unequivocal
as those which were actually used. Such a departure from them
smacks more of redrafting the subsection than of interpreting
it.
[82] Nor, if the remnant left after her abridgement bore the meaning
ascribed to it by O’Regan J, would it appear to pass one
of the usual
tests set for severability, the test prescribed in Johannesburg City Council
v Chesterfield House (Pty)
Ltd,[3] when Centlivres CJ
declared:
“The rule . . . is that where it is possible to separate the good from the bad in a statute and the good is not dependent on the bad, then that part of the statute which is good must be given effect to, provided that what remains carries out the main object of the statute... In such a case it naturally follows that it is impossible to presume that the legislature intended to pass the statute in what may prove to be a highly truncated form: this is a result of applying the rule I have suggested and is in itself not a test.”
We used that test and found it to have been met
in Coetzee v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and
Others.[4] On that occasion
Kriegler J, who wrote the judgment endorsed by the majority of the Court, left
room for the future evolution of
some or other exception to the rule by adding
the rider that “severability in the context of constitutional law may
often require
special
treatment”.[5] No reason why
we should not apply the same test to section 332(5) was advanced in argument,
however, or occurs to me. What we have
to examine in then going ahead can
hardly be “the main object of the statute”, which is much too
general and broad for
our purposes once the Criminal Procedure Act happens to be
that statute. We must look instead at the particular object of subsection
(5),
viewed within the setting of the whole section and with the help of any light
which the rest of that may shed on it. Yet I
am far from clear in my own mind
how we are expected to identify the “main object” of a statutory
provision that apparently
has not just one object, but collateral objects of
equal importance which vary in their levels, directions and thrusts. Some may
consider that to be the case here. Ackermann J believes that the main object of
the subsection is reversing the onus of proof in
the prosecutions and on the
issues covered by it. O’Regan J accepts that as a major object, but
couples it with and attaches
an equivalent weight to another which she deduces,
the object of imposing a duty on directors to prevent their corporate bodies
from
committing offences whenever they can do so. I doubt that what are said to
be those objects amount in truth to such. The second
sounds like a consequence
attributed to the operation of the subsection rather than an object of the
subsection itself. The first,
it seems to me on the other hand, is not so much
an object as the way in which an actual and anterior one was intended to be
achieved.
Ends have been confused there, I venture to suggest in short, with
means. Nor, once the main object of a provision is defined as
simply the
enactment of that very provision, can any object ever remain after the provision
disappears for effect to be given to
it. The object which I therefore prefer
imputing to the subsection is this. It was designed to ensure or encourage the
disclosure
by persons prosecuted under it of information which had a bearing on
the charges, and to preclude them from hiding behind corporate
veils, when the
true circumstances pertaining to the internal workings of their companies or
other bodies were seldom known to outsiders
but usually ascertainable from them.
The construction placed by Kentridge AJ on the product of his severance
accomplishes that object.
But the one which O’Regan J puts on the outcome
of hers does not.
KENTRIDGE AJ
[83] I have had the advantage of
reading the judgment of Langa J in this case. I am in full agreement with his
reasons for holding
section 245 of the Criminal Procedure Act 51 of 1977
(“the Act”) to be unconstitutional, and with the order which he
proposes insofar as it applies to that section.
[84] The question of the
constitutionality of section 332(5) of the Act raises more complex issues.
Langa J has fully analysed the
elaborate written and oral arguments placed
before us both by the applicants and the South African Government and has given
a lucid
account of the complex Canadian case law - case law which counsel for
both parties cited generously and relied on heavily. I am
indebted to these
analyses, but my own approach to the issues raised differs from that of Langa
J.
[85] In the course of argument we were referred by counsel to the
judgments of the Appellate Division in R v Limbada and
Another,[1] a case concerned
with a subsection in an earlier Criminal Procedure
Act[2] in substantially the same
terms as section 332(5). In those judgments a difference of view emerged
between Steyn JA, speaking for
the majority, and Schreiner JA, as to the nature
of the subsection. In brief, Steyn JA considered that the subsection was
“essentially
... an evidential provision”: it did not “bring
into existence a distinct ...
offence”.[3] Schreiner JA on
the other hand, took the view that the subsection did create a statutory offence
and was not merely evidential in
effect. This difference of opinion has,
however, little relevance to the present case. In S v
Klopper[4] Kotzϑ AJA giving
the judgment of the Appellate Division, pointed out that the issue in R v
Limbada[5] had been merely
whether the indictment against the accused had been properly drawn. He held
that the relevant subsection had the
effect of imposing vicarious criminal
liability on the directors or servants of a corporate body. Much earlier, in
R v Smith and Others,[6] De
Villiers J had regarded it as beyond question that the subsection imposed a
vicarious liability on the directors or servants of
a company. In De Wet and
Swanepoel, Strafreg[7] the
learned author says that the subsection does not create a new type of offence,
but undoubtedly creates a new form of liability
for the offence of another.
This characterisation of the subsection must, with respect, be correct. That it
was the intention of
the legislature to create vicarious liability appears
beyond question from the language of the subsection. The “deeming”
provision does not create an evidential presumption but creates and defines the
new form of criminal liability. The applicants'
argument to the contrary is in
my view unsustainable.
[86] Liability for the crime of another is a form
of strict or absolute liability, i.e. a liability imposed on an accused without
personal fault on his part. As far as I am aware vicarious criminal liability
is unknown to the Roman-Dutch common
law.[8] But in modern statute law
it is not uncommon. In South Africa, as in other countries, the complexities
and the pervasiveness of
commercial and industrial endeavour, and the need to
control them in the public interest, have led in several instances to the
creation
of vicarious criminal
liabilities.[9] The main examples
which come to mind are to be found in statutes regulating the handling of
products which are potentially harmful
either
socially1[0] or
physically.1[1] In those instances
the statute permits the accused to escape an otherwise strict vicarious
liability by establishing a defence that
he or she had used due diligence to
prevent the commission of the crime. Although this seems to be a common
provision I would observe
that it is in each case a matter of legislative
policy. Parliament might have imposed an absolute vicarious liability for the
misdeed
of another without any defence or excuse being available to the accused.
In such a case the State would have to prove beyond reasonable
doubt all the
elements giving rise to the vicarious liability including the commission of the
original offence for which the accused
is to be held vicariously liable. In the
absence of any special defence there could be no question of any onus being
placed on the
accused: that would not arise. If such a statute were before this
Court for constitutional scrutiny there could therefore be no
question of any
infringement of section 25(3) of the Constitution. The accused would be
presumed innocent until the prosecution
had proved all the elements necessary to
give rise to the statutory criminal liability. The accused’s right of
silence would
remain. One could not point to any factor in the statute itself
impairing the fairness of the criminal trial for its contravention.
The
question of the legitimacy of such a statute would be a different matter. That
would fall to be tested not under section 25
of the Constitution but against
other provisions of the Constitution, such as section 11(1) which protects the
right to freedom and
security of the person.
[87] Section 332(5) of the
Act reads as follows:
“When an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor.”
Accordingly, if section 332(5) had omitted
the words “unless it is proved that he did not take part in the commission
of the
offence and that he could not have prevented it”, the
applicants’ attack on the section, based as it was on the placing
of a
legal burden of proof on the accused, could not have been mounted. It could not
have been submitted that the accused was liable
to be convicted despite the
existence of a reasonable doubt as to his guilt. The prosecution would have had
to prove beyond a reasonable
doubt all the elements set out in the section. By
definition, no reasonable doubt as to the guilt of the accused could remain.
There could thus have been no basis for an attack on the constitutionality of
section 332(5) as being an impairment of the right
to a fair trial under section
25(3) of the Constitution. Indeed, I understood Mr Gilbert Marcus, who
presented the oral argument
for the applicants, to accept that that must be
so.
[88] The legislature did not in fact choose to create an absolute
vicarious liability. It chose to mitigate what would otherwise
have been the
harshness of the provision, by permitting an accused director or servant to
escape liability upon proof, on a balance
of probabilities, of the two exempting
factors which I have set out in the previous paragraph. As a matter of logic
and common sense
I find it difficult to accept that in thus rendering the impact
of the section less severe than it would otherwise have been, the
legislature
was thereby rendering a trial under the subsection less fair than it would
otherwise have been. With all respect to
the well-argued submissions of the
applicants’ counsel I would venture to say that this analysis of section
332(5) is a short
and complete answer to the attack based on section 25(3) of
the Constitution. Nonetheless, the applicants’ counsel have firmly
maintained that, whatever the position might have been in the absence of the
exempting provisions, the inclusion of those provisions
leads to the
infringement of section 25(3). They submit that its effect is to permit the
conviction of accused persons notwithstanding
the existence of a reasonable
doubt as to their guilt, a consequence which offends against the presumption of
innocence. They put
this argument on two alternative bases.
[89] Their
first submission is that the subsection created a new offence, or at least a new
criminal liability, and that an essential
element of that offence or liability
was that the accused must either have participated in the commission of the
offence or have
been able to prevent it. If, they say, that requirement were
“relegated to the status of a mere exception, exemption or excuse”,
then the provision would mean that it was a criminal offence to be a director or
servant of a corporation which had committed an
offence. That, they say, would
be “absurd”. I do not agree that that result must necessarily be
stigmatised as absurd,
given the policy of the legislature which seems to be,
broadly speaking, to ensure within limits that some natural person is liable
for
the criminal offence of a corporate body. But in any event, one must read the
subsection as it stands. It in fact expresses
non-participation in, and
inability to prevent, the corporation’s offence as matters of exception,
exemption or excuse. Reference
was made to cases on section 90 of the Act and
its predecessors, in particular to R v
Beebee1[2] and R v Kula and
Others.1[3] That section and
those cases deal with the essentials of charge sheets or indictments where the
offence charged is subject to a
statutory exception, exemption or excuse. Their
relevance to the present issues is in my view marginal. But whether one applies
the truncation test suggested by Watermeyer
CJ1[4] in the former case or the
broader method of construction preferred by Schreiner
JA1[5] in the latter, the language
of the subsection leaves me in no doubt that the “unless” clause
does not constitute an element
which the prosecution must negative, but in terms
creates an exemption or excuse which the accused may prove by way of defence.
No more need be charged than that the accused was a director or servant of a
corporate body which was liable to be prosecuted for
a specific offence. It is
then for the accused to bring himself or herself within the permitted defence.
I am accordingly not in
agreement with the applicants’ construction that
an essential element of the offence created by section 332(5) is that the
accused participated in its commission or could have prevented
it.1[6]
[90] The
applicants’ second and alternative submission requires more detailed
consideration. They contend, relying largely
on a line of cases in the Supreme
Court of Canada, that once a criminal statute contains a reverse onus provision
in the sense of
a provision requiring the accused to provide proof of some fact
in order to escape conviction, it is irrelevant whether that onus
relates to an
essential element of the offence or to a defence by way of excuse or exemption.
In either case the presumption of
innocence is destroyed and the fairness of
trial impaired. Section 11(d) of the Canadian Charter of Rights entrenches the
presumption
of innocence as an essential element in a criminal trial. The
Supreme Court of Canada has frequently had to consider whether reverse
onus
provisions violated that provision of the Charter. The essence of those
Canadian judgments on which the applicants rely is
perhaps to be found in the
following passage in the judgment of Dickson CJC in R v
Whyte:1[7]
“The short answer to this argument [that the reverse onus provision did not relate to an essential element of the offence] is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.
The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”
That passage was quoted in full in the
judgment of this Court in S v Zuma and
Others.1[8] Canadian courts
have followed and applied it in a number of other
cases.1[9] The applicants argue
forcefully that the principle stated by Dickson CJC applies to section 332(5).
They say, in paragraph 11 of
their supplementary written submissions:
“In the present case, the reverse onus provision introduces the inevitability of conviction of the accused despite the existence of reasonable doubt whether he participated in the offence or could have prevented it. His conviction despite this reasonable doubt, violates the presumption of innocence.”
[91] There seems at first sight to be much
force in this submission, particularly as in this field this Court has derived
much guidance
from the reasoning of the Canadian
courts.2[0] I should point out,
however, that in my judgment in S v Zuma, in which the other members of
this Court concurred, the constitutionality of reverse onus provisions in
exceptions, exemptions or
provisos to statutory offences, as referred to in
section 90 of the Act, was expressly left
open.2[1] Moreover, the above
quoted passage in the judgment of Dickson CJC, clear as it is, is not to be read
as if it were a praetor’s
formula, or a statute, to be applied to every
case that could be said to fall within its language. Judges of the Canadian
Supreme
Court have often pointed out that the protections to be found in their
Charter of Rights are to be interpreted and applied according
to the context in
which they may arise and not in the abstract. Thus, in Edmonton Journal v
Alberta (Attorney-General)2[2]
Wilson J stressed the need for a contextual approach to Charter interpretation.
She said:
“One virtue of the contextual approach it seems to me, is that it recognises that a particular right or freedom may have a different value depending on the context.”
In R v Wholesale Travel
Group Inc.2[3] La Forest J said
that certain procedural protections may be constitutionally mandated in one
context and not in another.2[4] The
context in that particular case was a statute which made it an offence to
publish false or misleading advertising. The offence
was one of strict
liability subject to the defence of due diligence, with the legal burden of
proving due diligence being on the
accused. There were other aspects of the
statute which complicated the case, but one of the issues was whether that
reverse onus
provision was in conflict with section 11(d) of the Charter.
Iacobucci J, with the concurrence of at least a plurality of the Court
held that
it did.2[5] This was not a
unanimous view. Cory J with the concurrence of L’Heureux-Dubϑ J held
that it did not. The relevant context,
he said, was that the statute under
attack was designed for the regulation of industry and commerce in the public
interest, and was
a form of public welfare legislation. He said at 224:
“The reasons for ascribing a different content to the presumption of innocence in the regulatory context are persuasive and compelling. As with the mens rea issue, if regulatory mechanisms are to operate effectively, the Crown cannot be required to disprove due diligence beyond a reasonable doubt. Such a requirement would make it virtually impossible for the Crown to prove regulatory offences and would effectively prevent governments from seeking to implement public policy through regulatory means.”
Later Cory J said:
“Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. . . . If the false advertiser, the corporate polluter and the manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society.”
I shall consider in due course
whether section 332(5) of the Act can be regarded as a “regulatory”
statute. I should
in any event point out (as did Langa J) that even outside the
regulatory context the Canadian cases do not speak with one voice.
In paragraph
34 of his judgment Langa J refers to R v
Holmes.2[6] There a section of
a criminal statute provided that:
“Every one who, without lawful excuse, the proof of which lies upon him, has in his possession an instrument suitable for the purpose of breaking into any place ... is guilty of a indictable offence...”.
The Supreme Court held that the
presumption of innocence was not violated, because the prosecution was required
to prove its case
beyond a reasonable doubt without the benefit of any
presumption, before any need for defence arose. That, as I have pointed out
above, is the position with section 332(5). McIntyre J, at 706, giving the
majority judgment said:
“If he is convicted in the face of such a defence, it is not because he has been presumed guilty or because the commission of the crime has not been shown, but because his excuse was rejected after proof of the commission of the offence.”
I find this approach highly convincing and
very much in point. In section 332(5) of the Act the primary object of the
legislature
was to introduce a vicarious liability for corporate crimes. If an
accused is convicted under the section it will be because all
the elements
required by the subsection in order to give rise to that liability have been
proved beyond a reasonable doubt and because
the excuse provided for by the
subsection has not been established. That is not to be equated with a
conviction in the face of reasonable
doubt as to guilt. In such a case, as in
R v Holmes,2[7] the
prosecution must prove its case fully by factual evidence without the benefit of
any presumption. The applicants submitted that
the section created a
presumption that the accused took part in the commission of the company’s
offence and could have prevented
it. With all respect, no such presumption is
to be found in section 332(5). Nor does the prosecution require to invoke such
a presumption
in order to succeed.
[92] I have referred in some detail to
the Canadian authorities because, as I have said, they provided the main support
for the submission
of the applicants. I do not presume to state the law of
Canada. I merely point out that the Canadian authorities taken as a whole
do
not provide a sure and unequivocal foundation for the applicants’
submissions. Further, although they deal with offences
of strict liability
(which might in some cases lead to a vicarious criminal liability) I am not
aware that any of them deal directly
with a statute expressly imposing a
vicarious liability such as section 332(5). Their statutory context is very
different. I point
out further that the burden of proof imposed by section
332(5) upon the accused is substantially less than the burdens imposed upon
the
accused in such cases as R v
Whyte2[8], R v
Keegstra2[9] and R v
Downey.3[0] Unlike the Canadian
statutes referred to in the above-mentioned cases, the subsection does not
require proof of due diligence on
an objective basis. At least in cases where
the company’s offence is one requiring a guilty intent, a director or
servant
will in practice escape liability on proof that he or she was genuinely
unaware of the commission of the
offence.3[1] In relation to section
25(3) of the Constitution I do not find it necessary to decide whether section
332(5) can be accurately characterised
as “regulatory”, although I
shall have to return to that question in a different context. It is sufficient
to say that
the object of the subsection is to control the activities of
corporate entities by imposing a responsibility on those who control
or conduct
their activities, and ensuring that they do not regard themselves as beyond the
reach of the criminal law if a crime is
committed in the course of corporate
activities. In that context, if guidance is to be found in the Canadian cases,
I consider that
the appropriate guides are Cory J and McIntyre J in the
judgments to which I have referred.
[93] In any event I consider that the
question of the constitutionality of the subsection is answered by the analysis
which I have
attempted in paragraphs 85 to 88 above. In brief, if an offence of
absolute liability had been created, it would not in itself have
given rise to
any question of the unfairness of the trial of such an offence. Where the
severity of such a provision has been mitigated
by allowing the accused to prove
a special defence it is in my view illogical if not perverse to say that this
destroys the fairness
of the trial. The constitutionality of section 332(5)
falls to be tested against other provisions of the Constitution, in particular
section 11(1). I venture to suggest that the underlying fallacy in the argument
of the applicants is that they have confused the
question of the fairness of
section 332(5) itself with the very different question of the fairness of a
prosecution under that provision.
[94] Section 11(1) of the Constitution
provides:
“Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.”
The applicants submit that section 332(5) is an
infringement of that provision of the Constitution. They say, in paragraph 13
of
their supplementary written submissions:
“Such an offence which exposes the accused to a fine or imprisonment for the conduct of others in which he did not participate and which he could not have prevented, would violate the rights to freedom and security of the person in terms of section 11(1) and property in terms of section 28 of the Constitution.” (footnote omitted)
Although this
submission was presented virtually as an afterthought it is a serious contention
in relation to section 11(1) of the
Constitution.3[2] The imposition
of criminal liability in the absence of a criminal intention has for some
hundreds of years at least been regarded
as an abhorrent concept both in South
African law and in the Anglo-American common law.
Blackstone,3[3] in a much cited
passage, said:
“To constitute a crime against human laws, there must be first a vicious will; and secondly an unlawful act consequent upon such vicious will.”
In Morissette v United
States3[4] Jackson J
said:
“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” (footnote omitted)
Similarly in Sweet v
Parsley3[5] Lord Pearce
said:
“The notion that some guilty mind is a constituent part of crime and punishment goes back far beyond our common law. And at common law mens rea is a necessary element in a crime.”
In S v
Qumbella3[6] Holmes JA
said:
“[T]he basic principle is that actus non facit, reum nisi mens sit rea. Current judicial thinking is recognising more fully the scope and operation of this fundamental rule of our law...”.
Holmes JA, at 364F, went on to refer to this
rule as a “fundamental principle of fairness”. It is on the basis
of this
principle that statutes creating criminal offences will, as far as their
language permits, be interpreted as requiring the element
of mens rea in some
form, either subjective guilty intent or at least negligence. So too, unless
the language clearly warrants it,
a statute will not be interpreted as enacting
vicarious criminal liability.3[7]
Indeed vicarious liability may entail conviction not only in the absence of a
guilty mind but even when the accused has not personally
committed the criminal
act.
[95] In Canada section 7 of the Charter of Rights provides that
“[e]veryone has the right to life, liberty and security of the
person and
the right not to be deprived thereof except in accordance with the principles of
fundamental justice.” In a number
of Canadian cases the Supreme Court has
measured offences of strict liability against that section. The
applicants’ reliance
on these cases calls for some analysis of them. I
should point out however, that in none of these cases is the statute in question
in anything like the terms of section 332(5). In Reference re s.94(2) of the
Motor Vehicle Act,3[8] the
Supreme Court of Canada, through Lamer J, held that absolute
liability3[9] and imprisonment could
not be combined: to do so would not be in accordance with the principles of
fundamental justice. The degree
of mens rea required to comply with section 7
is related to the nature of the crime. In R v Wholesale Travel Group
Inc.4[0] the same judge (now
Lamer CJC) said:
“In Reference re: s. 94(2) of Motor Vehicle Act, supra, this Court held that the combination of absolute liability and possible imprisonment violates s.7 of the Charter and will rarely be upheld under s.1. This is because an absolute liability offence has the potential of convicting a person who really has done nothing wrong (i.e., has acted neither intentionally nor negligently).
In R. v. Vaillancourt, supra, I stated that whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state (or fault requirement) which is an essential element of the offence. Reference re: s.94(2) of Motor Vehicle Act inferentially decided that even for a mere provincial regulatory offence at least negligence is required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. The rationale for elevating mens rea from a presumed element ... to a constitutionally required element, was that it is a principle of fundamental justice that the penalty imposed on an accused and the stigma which attaches to that penalty and/or to the conviction itself, necessitate a level of fault which reflects the particular nature of the crime.”
What this indicates, applied to our own
Constitution, is that while it would in general be an infringement of section
11(1) to subject
a person to the risk of imprisonment on the basis of an
absolute liability without at least a defence of due diligence, nonetheless
the
constitutional standard may allow some degree of strict liability. In the
pre-Charter case of R v City of Sault Ste.
Marie4[1] Dickson J identified
three main categories of criminal offence. The first is the category of
offences in which mens rea consisting
of some positive state of mind must be
proved by the prosecution. The third category comprises offences of absolute
liability where
it is not open to the accused to exculpate himself even by
showing that he was free of fault. In between these is the second category
of:
“Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.”[at 181]
Section 332(5), like most cases of vicarious liability,
would fall into this intermediate category. Whether any particular provision
of
this sort would be an infringement of section 11(1) of the Constitution must
depend on the nature of the particular statutory
provision under consideration,
and the weight of the burden on the accused.
[96] I have stated above
in broad terms, the purpose of section 332(5). It must be said at once that the
subsection does not fall
within the category of regulatory offences as that term
has been used by the Canadian courts. Typical examples of crimes falling
within
that category are offences created by statutes designed to prevent pollution of
waterways, the sale of adulterated food or
the distribution of dangerous drugs.
Section 332(5) by contrast covers every type of criminal offence which a company
might commit
including crimes such as fraud, theft or culpable homicide. Some
convictions under section 332(5) would carry a serious moral stigma.
Nor is
there any limit on the punishment which can be imposed upon a conviction under
section 322(5). It is nonetheless in my view
useful to examine the rationale
behind the holdings of Canadian (and American) courts that it is
constitutionally legitimate to impose
criminal penalties on certain forms of
conduct in the absence of criminal intent or even negligence on the part of the
accused.
The rationale appears to be a combination of the public interest in
preventing antisocial conduct, the belief that criminal penalties
will induce
those in responsible or controlling positions to take all possible steps to
avert such conduct, and the difficulty of
achieving the object of the
legislation if the prosecution has the burden of proving intent or negligence.
Thus in United States v
Dotterweich4[2] the United
States Supreme Court had to deal with a statutory offence of shipping
adulterated and misbranded drugs. In the judgment
of the
court4[3] the following passage is
to be found:
“The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirements for criminal conduct - awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” (My emphasis)
In Morissette v United
States4[4] the Court referred
to “what have been aptly called ‘public welfare
offences’”. Of these the Court (through
Jackson J) said:
“Hence, legislation applicable to such offences, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.”4[5]
Another
relevant passage is to be found in the judgment of Cory J in R v Wholesale
Travel Group Inc.4[6] He
referred to what he called “the licensing concept” in the following
terms:
“The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of the responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost amongst these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care.
The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on the concept of control. The concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should, therefore, be held responsible for it.”
In the same case at 221c-d
Cory J returned to this theme. He said:
“As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being allowed to engage in the regulated activity. In these circumstances, it misses the mark to speak in terms of the ‘unfairness’ of an attenuated fault requirement because the standard of reasonable care has been accepted by the regulated actor upon entering the regulated sphere.”
At 225f-g the same judge said:
“Quite simply, the enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt. The means of proof of reasonable care will be peculiarly within the knowledge and ability of the regulated accused. Only the accused will be in a position to bring forward evidence relevant to the question of due diligence.”
As I have already pointed out, R v City
of Sault Ste. Marie4[7] was a
pre-Charter case. The explanation given by Dickson J for strict, including
vicarious, criminal liability is nonetheless relevant
and compelling. He
said:4[8]
“The element of control, particularly by those in charge of business activities which may endanger the public, is vital to promote the observance of regulations designed to avoid that danger. This control may be exercised by ‘supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control’: Lord Evershed in Lim Chin Aik v The Queen [1963] A.C. 160 at p. 174. The purpose, Dean Roscoe Pound has said (Spirit of the Common Law(1906)), is to ‘put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morale’.”
Later, at 181 he said:
“The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to . . . the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation.”
[97] These considerations can in my
opinion be properly applied to a provision such as section 322(5), designed as
it is to induce
those who control corporate bodies to ensure that those bodies
keep within the law. A corporate body can act and thus commit criminal
offences
only through human agents, but the identity of those agents cannot always be
ascertained. Moreover the agent through whom
the criminal offence is committed
may hold a lowly position. In view of the dominant role played by corporate
bodies in modern society
it seems to me to be a legitimate objective of
government to ensure that the persons who control such bodies are not entirely
immune
from criminal liability for offences committed by servants of that body
in furtherance of its objectives. An absolute liability
for the crimes of the
corporate body would be so extreme as to be regarded by reasonable persons as
unfair or oppressive. But the
subsection is not absolute. It provides a
defence for the controllers of the corporate body which, as I have already
pointed out,
is considerably less burdensome than the requirement of proof of
due diligence referred to in the Canadian cases. I see nothing
unfair in
placing that limited burden upon the controllers of the corporate body. They
are the ones who may be expected to be aware
of the internal workings of the
corporation. They are the ones in the best position to give evidence of their
own lack of participation
and knowledge. The prosecutor does not know what goes
on in the boardroom; the director does. The provision ensures or attempts
to
ensure that a person in the position of director of a company will understand
that he has responsibility for its conduct. The
inducement to responsible
corporate conduct is enhanced by placing personal criminal liability on the
shoulders of those in control,
subject to a burden of proof not unduly difficult
for the innocent to discharge. The corporation itself can be punished only by
a
monetary penalty, a penalty which may not seriously affect those in control.
Further, what Cory J called the “licensing
concept” is peculiarly
appropriate to the conduct of corporate bodies and in particular limited
liability companies. Counsel
for the Government, Mr Jeremy Gauntlett SC, in his
further written submissions said this:
“The conduct of a director contemplated by section 332(5) is proscribed because the inadequately controlled (and criminal) activity of the company to which it relates redounds to the detriment of society at large. . . . Those who choose to assume a directorship have, in doing so, placed themselves in a position of responsibility not only vis a vis the company but in relation to the public generally. . . . They must accept the consequences of that position of responsibility. This is because they are in the best position to control the harm which may result from the activities of the company. More specifically, they must accept (indeed, for all practical purposes, they are deemed to accept) that the law requires them to control the corporate body, and otherwise discharge their duties as directors, in accordance with certain minimum standards on pain of civil and criminal liability.”
I agree with that statement of the
rationale of section 332(5).
[98] The application of the
“licensing concept” to the control of companies is supported by the
judgment of this Court
in Ber
.RTF of original document